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Union-State Relations in Federal Polity of India

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“India that is Bharat is an indissoluble union of states”. Naturally, all debates about ‘Federalism’, ‘Quasi federation’ or ‘Centralized federal polity’ are interpretational and skirt around the US model which is classical in constitutional theory. The term ‘Foedris’ which requires ‘Union’ not unity has its extremist ends in cultural federalism in a unitary state and confederationalism of contractual units.

USSR and Switzerland have been the best examples which are called cultural federations within the ambit of a strong centralized state and a weak decentralized government with cantonal autonomy of direct democracy respectively.

In between there are varieties of models like Canada, Germany, Australia, South Africa and USA from where the founding fathers of Indian Consti­tution freely borrowed and fitted the characteristic borrowings in the 1935, federal frame prepared by the British to resolve Indian problems of ‘Unity in Diversity’. In its essence, this model of Indian federalism is unique and is unfolding its resilience in operation with every parliamentary and state vidhan sabha elections in India.

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The federal and un-federal features of Indian quasi-federalism vis-a-vis American federalism of Jacksonian era are:

These interventions in classical theory of federalism were warranted by several historical, cultural and political factors of building a nation-state under the tragic shadows of partition. Moreover, the princely India which Sardar Patel has integrated in three years time justified a centralized federal structure to foster national integration in a continental country of diversities cherishing the vision of a ‘Bharat Mata’. In fact, when all federations represent a process of coming together of the federating states the Indian federation is a process of breaking up the unitary Indian states into federating units.

The Maurya, Gupta and Mughal empires welded the people of diverse faiths, origins and languages of the subcontinent on whom the colonial rule of the British superim­posed an administrative unity of the ruling elites. The complex situation has become simply incomparable to fit into any ideal type framework.

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Hence the term ‘indissolvable union’ was chosen and a separate part was devoted to the centre-state relations during normalcy and emergency. Parts XI, XII, XIII, and XVII provide elaborate details on the basis of these relations which are interpreted as unitary as well as federal.

The part (XI) is divided into two chapters. Chapter I, entitled Legislative Relations deals with the distribution of legislative powers.

Chapter II, entitled Administrative Relations is divided into three parts:

(1) General,

(2) Disputes relating to waters and

(3) Coordination between states.

The Part XII, entitled Finance Property, Contracts and Suits has four chapters. Chapter I deals with the distribution of revenues between the Union and the states and miscellaneous financial provisions including expenditure, custody, grants, and provides for the constitution of a Finance Commission (Article 280). Chapter II deals with borrowing by the Government of India and the states. Chapter III deals with property, contracts, rights, liabilities and suits. Chapter IV is concerned with the Right to Property. Then there is Part XVIII which deal with Emergency Provisions.

Unlike USA, where every state has its own Constitution, the Indian Constitution prescribes a uniform structure of governments for the states as an integral part of the Indian Constitution. The division of subjects follows the scheme of 1935 Government of India Act, which enumerates the subjects in its VII Schedule.

The State List has 61 subjects which envisage the possibility of different kinds of treatment to different items in the different states. Some of these items are public order, police, administration of the justice, prisons and reformatories, local government, public health and sanitation, intoxicating liquors, burials and burial grounds, libraries and museums controlled by the state, inter-state communications, agriculture, animal husbandry, water-supplies and irrigation, land rights, fisheries, trade and commerce within the state, gas and gas-works, markets and fairs, money-lending, theatres, betting and gambling. The state legislature has the exclusive power of legislation with regard to everyone of the items included in the State List.

The subjects in the Concurrent List are 47 in number. These areas require uniformity of legis­lation throughout the Union. The list includes subjects such as: power, lunatic asylums, civil procedures and criminal laws, economic and social planning, marriage and divorce, education, vital statistics including registration of births and deaths, newspapers, legal, medical and other profes­sions, trust and trustees. Both the Union Parliament and state legislature possess simultaneous rights to frame laws on concurrent items.

But in case, a Union law on a concurrent topic conflicts with a State Act on the same subject, the former has precedence. The residuary powers of legislation are vested in the Union. This power as in the Canadian Constitution includes the power of making laws, imposing any taxes not mentioned in either of the State or Concurrent Lists. The American Supreme Court developed it as a convention, now called ‘Doctrine of Implied Powers’.